3. I think Mr Kelly's view is preferable. A proposal along the lines suggested by Hong Kong would lead to a lack of certainty for individuals, even if it were well publicised that the Secretary of State was about to cease the operation of Article 4(4) in a few months time. Not every individual will become aware of this fact. There are also all the persons who are entitled to be registered who are outside Hong Kong. It would be very difficult to inform them even with a publicity campaign. I think the criteria of "exceptional circumstances" is a tight one and few individuals will be able to show that there are circumstances which are sufficiently exceptional to justify being registered late. I do not see the need for Miss Ho's provision and there are problems with it.
4.
This leads me to wonder whether it is appropriate that draft Article 3 amending the 1986 Order to add a new sub-section (7) to section 42 of the British Nationality Act 1981 should be deleted after all. This was proposed by Hong Kong Government and accepted by Mr Kelly in paragraph 6 of his letter to Ingrid Ho. I think it is necessary to have a provision for late registration for persons who can show exceptional circumstances justifying this. However, if sub-section (7) were to be kept, I wonder whether the Secretary of State should continue to register or naturalise an applicant as a BDTC up until 30 June 1997. The whole purpose of registration as a BDTC is to enable someone to apply for BN (0) status and once 30 June 1997 is reached such a person will no longer be able to do so. In order to mesh in with draft Article 4(5) the date of 30 June 1997 should be changed to 31 March 1997 so as to enable a person who has registered or naturalised as a BDTC under section 42 of the BNA 1981 and who has been registered late due to exceptional circumstances to still apply for registration as a BN (0). (I have suggested 31 March 1997, but this depends on whether or not the three month period which is envisaged in draft Article 4 (5) is retained or is extended. If it were extended to a longer period, that would need to be reflected in sub-section (7)).
5.
Finally, it occurs to me to wonder whether we need to amend the provisions on statelessness in the Hong Kong British Nationality Order 1986. I have reflected on this and do not think there is any need to do so despite the changes in dates that will be made by this draft Order. Home Office Legal Advisers may however wish to reflect on this point.
2
She laph Brooks
Shelagh Brooks
No comments yet.
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